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OFFICE OF THE UMPIRE No. B-25 November 16, 1941
Request of Employee for Transfer
GRIEVANCE: Chevrolet Oakland -- Case No. 3 "Why are we kept on lower paying job when in line with our seniority we wish to get off?"
Umpire's Decision:
In the Matter of: United Automobile Workers of America -- C.I.O. Local 76 and General Motors Corporation -- Chevrolet -- Oakland Division – Case No. 3
This case arose when Employees T. and C. filed a grievance, on June 6, 1941, which reads: "Why are we kept on lower paying job when in line with our seniority we wish to get off?" A hearing was held in Oakland on October 29, 1941, at which time the Union withdrew the claim made by Employee C. The issue as submitted for decision, therefore, relates to the claim of T. that he be transferred to another job.
Nature of Case The claimant, with a seniority date of December 6, 1932, is classified under "Drivers -- Unlicensed Cars" which pays a rate of $.90 per hour. T. was assigned to this classification after being injured while at work in the plant. He now feels he is entitled to a better rated job. T. sustained a knee injury on March 11, 1935, while he was working as an assembler. On November 18, 1935, he returned to the assembly line on a job comparable to the one he performed prior to the accident, but he continued to receive medical treatment. The knee developed a tendency to "get out of place," however, which prevented T. from doing this job. In an effort to find another job for T., which would permit him to work without a constant weight on the injured leg, the employee was assigned to truck driving on March 7, 1938. He has since been employed on this job. On May 18, 1938, T.'s compensation case resulting from the knee injury was closed when the Industrial Accident Commission gave him a permanent disability rating of 12 3/4% total disability or compensation equal to 51 weeks at disability payments at the rate of $18.24 per week. This resulted in a lump payment to T. on May 31, 1938. T. now claims a virtually complete recovery from the knee injury and seeks an assignment to a job on the assembly line. He claims his seniority entitles him to such a job. Corporation Position The Corporation maintains that T. "has been given a proper job assignment taking into consideration his permanent disability". On the basis of his most recent examination, the plant doctor reports: "Although Mr. T.'s injured knee was apparently sound in December 1940, there is presumable susceptibility to re-injure which makes it advisable that this patient not be allowed to work at occupations which would throw strain or excessive use on the knee... I believe that Mr. T.'s present job, driving trucks between the two plants, allows about as little likelihood of injury to the left knee as any general plant occupation, except sedentary work". Management feels that it has a very real obligation to make a work assignment for T. that is in conformance with the doctor's report. This is particularly so, states the Corporation, since the Industrial Accident Commission records show that T. is permanently disabled because of the knee injury. It is emphasized by management that the permanent disability rating was made after T. had contended he could not perform his regular work because of a knee injury which was then legally adjudged to be permanent. In view of this legal record and of the doctor's report, management feels that assignment of T. to an assembly job would represent an undue risk not only to the employee but also to the Corporation which could readily be adjudged negligent if a further knee injury developed while the claimant was on assembly work. Management feels that if the knee injury has in reality been completely cleared up, such a recovery should be attested by a competent doctor and the records of the Industrial Accident Commission should be amended accordingly. Then, states management, consideration could properly be given to T.'s claim for an assembly job without any complications. Union Contention The Union feels that T. is capable of performing plant operations at a higher rate of pay than he presently receives and which have been available in recent months. It is emphasized that a new type of treatment has shown such good results that the knee injury has been finally cleared up to such a degree that his family doctor has pronounced him physically fit to perform operations inside the plant. Under the above-mentioned circumstances, the Union contends that it is contrary to Paragraph 63 to keep T. on a lower rated job while less competent employees with less seniority are transferred to higher rated jobs. Reference is made by the Union to that part of Paragraph 63 which reads: "In the advancement of employees to higher paid jobs when ability, merit and capacity are equal, employees with the longest seniority will be given preference." Under this paragraph, the Union claims that T. is entitled to transfer since many higher rated jobs were filled by temporary employees who had to be trained in the work for which they were hired.
Opinion and Decision of the Umpire There is no doubt that if T. is physically capable of performing a higher rated job, he is entitled to preference in assignment to such a job over employees with less seniority if his ability, merit and capacity are at least equal to such employees. The question in the present case, however, concerns his capacity to perform a higher rated job in view of the knee injury he sustained some years ago. One cannot fail to recognize that the Industrial Accident Commission legally adjudged T. to be permanently incompetent to perform an assembly job when it classed his knee injury as a permanent incapacity. Management would be remiss if it ignored such findings in making work assignments for T. and has taken an entirely reasonable position in this matter. To assign T. to a factory job, despite the above-mentioned finding of the Commission, could easily open management to the charge of negligence in the event of another accident. There is reason and merit to the Corporation position that, if the knee injury has been found to be not a permanent injury, there should be an appropriate amendment to the legal record of the Industrial Accident Commission. Then consideration could properly be given to the claim of T. for an assembly job. In such cases, it is also evident that the parties are not in a position to declare whether or not an employee with a physical defect can nevertheless work at certain jobs without undue risk to himself and to fellow employees or without exposing management to the charge that an injured employee has not been given a proper job. The parties and the employee can only depend upon professional medical advice in such cases. In the present case, the plant doctor has made certain recommendations in good faith that cannot properly be ignored by plant management, particularly in view of the previously mentioned findings of the Industrial Accident Commission. As the present issue now stands, it has been determined by the plant doctor and by the Industrial Accident Commission that T. lacks the capacity to perform the jobs to which he seeks transfers. Lacking such capacity, his seniority does not give him the right to such a transfer under Paragraph 63 which specifically mentions capacity as one of the factors to be taken into account in the making of promotions. T.'s claim to a transfer to a better job under Paragraph 63 would arise, however, if later medical examination disclosed that the incapacity had been removed, as he claims, and if he were then to be declared competent to perform the work in question by the Industrial Accident Commission. Decision
Signed GEORGE W. TAYLOR, UMPIRE. November 16, 1941. |